Bowling v. Kentucky Department of Corrections

BOWLING, Ralph Baze and Thomas C. Moore, Appellants, Keith

Brian

v. DEPARTMENT OF

KENTUCKY

CORRECTIONS, Appellee. also, Rees, 207; 217 S.W.3d See Baze

No. 2007-SC-000021-MR. Rees, Baze v. Kentucky. Supreme Court 128 S.Ct. L.Ed.2d 553 U.S. 25, 2009. Nov. 4, 2010. Jan.

As Corrected Barron,

David Michael Frankfort, KY, Advocacy, An- John Public Palombi, AL, thony Montgomery, Counsel Bowling, Ralph Appellants, Thomas C. and Brian Keith Moore. Baze Cummings, Jeffrey Thomas John C. Middendorf, Safety Justice Public Cabinet, Services, Legal Frank- Office of fort, KY, Lynn, Stephen D. Justice Cabinet, Ser- Safety Legal Office of Public vices, Richmond, KY, for Appel- precluded Counsel as a matter of law from lee, Kentucky Department reserving arguments of Corrections. subsequent ac- tions. Accordingly, judicata precludes res Opinion Justice Bowling consideration of and Baze’s sec- ABRAMSON. declaratory ond action. Appellants Bowling and Baze were Appellant Moore stands in a different of murder and convicted sentenced to posture before this Court because this is respectively. 1991 and action, his first declaratory judgment ren- pursued Each has all exhausted direct dering judicata inapplicable res to his collateral in the state appeals and attacks Administrative Procedures Act claim. and, they jointly, prosecuted courts a de Having law, reviewed the applicable it is claratory judgment action challenging apparent that the injection protocol lethal Kentucky’s injection protocol lethal on sev implements 431.220, Kentucky’s le- eral grounds including prohibition on and, injection further, thal statute punishment cruel and unusual set forth in significant portions protocol of the are not of the Eighth Amendment U.S. Consti matters of internal management for the Kentucky tution and Section 17 of the Department but rather gen- statements of declaratory judgment Constitution. That applicability eral and policy which affect seven-day trial in prompted action bench private rights. Pursuant to KRS court, Appellants’ the circuit with 13A.100, constitu Kentucky General Assembly arguments ultimately being rejected tional required has that such portions of the Rees, in v. both this Court Baze 217 protocol adopted as an administrative (Ky.2006) regulation. S.W.3d 207 and the Contrary Department’s United Rees, contention, Supreme States in prohibited by Court Baze it is not statute 1520, 170 adopting regulations U.S. 128 S.Ct. L.Ed.2d 420 from implement (2008). declaratory In judg Notably, this second KRS 431.220. the Franklin Cir- action, Appellants challenge ment those cuit Court concluded that the thorough injection protocol the same lethal but this Kentucky’s examination of penalty death they time contend that it is protocol seven-day unenforceable in the bench trial held properly adopted because it was not as an in Baze Bowling’s declaratory first I), regulation judgment accordance action (Buze/Bowling pro- Kentucky’s Administrative ceeding approximately Procedure wit- (APA). nesses, unquestionably Act While “death including experts, several were different”, sides, principles judicata of res pub- called both a sufficient was applicable capital are no hearing protocol less defendants lic and thus the current pursue than other parties formally adopted who relief our not be as an need ad- justice system. declaratory judgment A regulation. ministrative While the trial action is the chal appropriate certainly public vetting means of was an extensive lenging implementation protocol, of a defendant’s of the this cannot ignore sentence, given necessity join publication hearing re- ing which quirements Corrections set forth in stat- action, Thus, party is not a to the criminal pro- but utes. must piecemeal litigation through pursuant Chapter successive ac ceed to KRS 13A to Simply put, Appel tions is not allowed. adopt regulation as an administrative all Bowling required protocol lants and Baze were portions implementing all join regarding implementation claims except statute those in- their sentences of execution in origi volving purely their internal matters as dis- action, nal declaratory judgment they herein. cussed the inmate’s place AND for an execution: FACTS

RELEVANT confinement, procedures, pre-execution BACKGROUND PROCEDURAL the warden dur responsibilities of and the in this appellants The three individual The De watch” and execution. ing “death Baze, and case, Bowling, Ralph Thomas a lethal has also written partment Moore, previously each were Brian Keith specific procedures protocol detailing and sentenced murder convicted of execution, but during to be followed and sen Bowling was convicted death. refused to generally has murders of a the 1990 tenced to death for regulation protocol as an administrative were they parked wife as husband that the arguing the public, disclose dry cleaning busi their their car outside and is not in nature protocol is-internal Bowling v. Lexington. Common ness Kentucky’s requirements subject to wealth, (Ky.1993). Baze 873 S.W.2d Procedures Act. Administrative to death and sentenced was convicted I, parts of Baze/Bowling significant police officers of two the 1992 murders drugs public including became protocol fugitive serve five attempting to who were administered, each, qualifications dosage of County. Baze him in Powell warrants on and administering drugs the personnel Commonwealth, (Ky. 817 965 S.W.2d v. of life measures available for resuscitation 1997). convicted and Lastly, Moore was stay a of execution. The in the event of kidnapping the 1979 sentenced the length by at protocol was addressed year-old 77 man who was murder of a and Rees, Court. See Baze v. Supreme U.S. store in Louisville. grocery an A&P leaving 1527-1529, at -, 128 S.Ct. 553 U.S. Commonwealth, 34 771 S.W.2d v. Moore at 429-430. L.Ed.2d 170 above, Bowling and noted (Ky.1988). As (collectively Baze and Moore Bowling, 2004, August I in Baze/Bowling Baze filed declaratory judg- this “Appellants”) filed challenging action declaratory judgment a re- in Franklin ment action Circuit protocol as a method of injection the lethal enjoined Department that the questing several, constitu primarily execution on any executions until it carrying from out however, Moore, has not tional, grounds. injection protocol the lethal promulgates challenged implementation the previously 431.220 in accor- implement used to KRS declaratory judg in a penalty of his death Kentucky’s Administrative dance ment action. 2006, 26, the De- May Procedures Act. On 1998, Kentucky General Assem- In the the partment filed a motion to dismiss 431.220, recog- which KRS bly enacted subsequently complaint, Appellants while only “the method injection nized lethal summary Af- judgment. filed a motion for Al- in this of execution Commonwealth.”1 motions, arguments on these hearing ter specify this does though statute 30, 2006, circuit court on November procedures to be used or substances finding that KRS entered an order in- implementing the lethal be followed required pro- 13A.100 Kentucky Department Cor- jection, the granting Appel- promulgated, tocol to be (“the a two- Department”) motion, issued rections summary judgment and or- lants’ (Corrections Policy and Proce- Policy its page dering 9.5) 3, 2005, briefly which to the set protocol pursuant on June dure Act. out in the Administrative Procedures procedures to be followed outlined three 431.220(b) of execution or the electrocution prisoners who method states 31, penalty prior March the death received method. 1998, either choose shall 483 order, entry Following judgment of this vacate a enter new one” alter, amend, va- Department moved properly on motion a party filed 30, cate Order pursu- the November 2006 days entry within ten after final judg Kentucky Rule of Procedure ant to Civil ment. Recognizing scope power (CR) 59.05, primarily pro- arguing that its 59.05, accorded trial courts this CR - already provided repeatedly tocol had been Court has stated that “a trial court has that the portions power ‘unlimited to amend and alter its ” pro- internal protocol not disclosed set out Gullion, Gullion judgments.’ own only affecting Department’s cedures 888, citing Henry (Ky.2005) S.W.3d 891-92 agreed, court personnel. trial Co., Clay Mining Co. v. V & V Min. December vacated its November Gullion, S.W.2d (Ky.1987). cit we it contained “manifest Order because favorably grounds ed the four recognized law.” Appellants errors now urge federal combs construing vacate trial Court to court’s December counterpart, federal Federal Rule of Civil original 2006 Order reinstate its 59(e): Procedure summary granting order the motion Appellants advance three bas- There judgment. grounds are four basic upon 59(e) es for a reversal of the trial court’s order: may a Rule motion be grant- new present any did First, may ed. the movant demonstrate arguments justify to the trial court to its necessary that the motion is to correct motion; grant decision to the CR 59.05 manifest errors of law fact upon granting trial court’s reasons for the CR Second, which judgment the is based. insufficient; lastly, 59.05 motion were and the may granted motion be so that the Kentucky’s Administrative Procedure Act may present moving party newly discov- regula- the requires Department adopt to ered previously or unavailable evidence. carrying injections. tions for out lethal Third, will the motion if nec- granted Following briefing on raised the issues essary prevent injustice. to manifest 19, this Court in a Appellants, June may justi- Serious misconduct of counsel parties 2008 directed the to Order address Fourth, fy theory. relief under this a procedural various matters the including 59(e) may Rule motion an justified by jtidicata preclusion effect of res and claim intervening law. change controlling splitting or of of the causes action on citing at 163 S.W.3d 893 Federal Practice effect, of any, matter and the if a pending § 2810.1. A trial judge’s And Procedure civil on of a action the execution criminal ruling pursuant to 59.05 CR is reviewed judgment. Appellants’ arguments ap- appellate court dis- under the abuse of the peal and issues raised in this Court’s Gullion, cretion standard. 163 S.W.3d 19, 2008 of subject June Order were 892. 16, arguments oral on October 27, Order, In its December 2006 the trial

ANALYSIS court in this case cited the relevant stan- I. The Trial Court Did Not its Abuse Gullion dard from and then concluded that Orig- It

Discretion when Vacated Its review of applicable “after further stat- Judgment inal and Entered a New to those attempt utes and an harmonize Judgment Pursuant to CR 59.05. original Order Novem- statutes” dated ber contained “manifest of

CR trial 2006 errors 59.05 authorizes the court “alter or or trial judgment, proceeded to amend a to law.” The court to outline what we now implicitly recognized ing I injection pro-

its conclusions hold, namely de single expressly management; of internal an issue was tocol to pursuant claratory judgment action not directive contain 431.220 does KRS is the and the civil rules KRS 418.040 regula- to establish Department for the all of vehicle determination appropriate injection; implement tions to implementation of regarding issues is known injection protocol current lethal cognizable in a are not penalty Baze/Bowling virtue public by criminal action. defendant’s practical considerations litigation; I and the use of administrative against militate provides KRS 418.040 develop proto- to an execution regulations in a court of record of action analysis five pages The trial court’s col. jurisdic- having general Commonwealth finding in the a one sentence displaced appear that an it is made to tion wherein re- 13A.100 30 Order: “KRS November exists, controversy plaintiff actual to of Corrections quires ei- rights, ask a declaration may implement rules relief; and the with other ther alone or exempt 431.220, does and KRS 13A.120 may binding declaration court make rulemaking in this from consequential re- whether rights, vacating the November 30 After case.” be asked. lief is could Order, Appellants’ court denied the trial act is be lib- declaratory judgment summary judgment grant- motion for interpreted and is erally and administered Department’s ed motion dismiss. “more service- to make courts intended con- by way settling people able to court was authorized

Plainly, trial troversies, from uncer- affording relief own conclu- prior upon order its vacate its insecurity respect tainty that it contained “manifest errors sion ” KRS rights, re- duties relations.... partially this Court is Although law.” Order, 418.080; Riggs, Continental Ins. Co. versing December (1939). Recently Ky. no 126 S.W.2d there was abuse discretion Bunnell, 265 v. vacate the in Mammoth Medical court in its decision to trial al- noted that summary (Ky.2008), S.W.3d 205 we prior granting Appellants’ order 418, scope Chapter of KRS Accordingly, though the December judgment. Judgments” “Declaratory entered and is properly Order was 2006 wide, are, however, this for review. properly before liberal and there is Declaratory not judgment limits. does Declaratory Judgment Action is II. A replace every occasion and does not fit Raising Appropriate for Vehicle and ac- system of remedies existing Appellants’ Pro- Administrative a example, an action for tions. For cedure Act Claim judgment cannot be institut- declaratory determination substan- to secure a ed Order, 2008 a June a suit. rights pending involved in tive file sponte parties asked the Court sua 656, 154 Ky. v. 287 S.W.2d Tyree, Gibbs addressing related supplemental briefs (1941). 732, 733 judicata, preclusion claim issues of res Moreover, declaratory appro- is relief causes of action against splitting the rule clearly action, special a statute is declaratory priate or “where “a civil and whether remedy.” an otherwise, provide exclusive procedural intended appropriate is the Louisville, City 229 No. v. challenges Iroquois Post raising type vehicle for (Ky.1955). Finally, 14 CR S.W.2d Appellants.” brought Baze/Bowl for obtain- provides procedure timely that “the sert an affirmative defense waives precludes that defense declaratory judgment pursuant its consider ing a ation court the trial and this Court. with statute accordance these shall ” K, H, S (Ky. Watts & S.W.2d 233 rules.... 1997). Nevertheless, this rule does not Appellants correctly note that preclude raising courts from issue of providing there is no exclusive statute jud,icata res its or related sua doctrines remedy addressing their APA claim or sponte declaratory in a judgment action. any challenge for that other matter recognizes KRS 418.065 rights broad protocol lethal would in which accorded courts declaratory judgment Clearly “an Department. volve the actual actions: controversy” Appellants existed between The court refuse may to exercise the imple Department regarding and the power to rights, declare or other duties penalty through the death mentation of legal a relations case where deci- and, recog implicitly we sion would under it not terminate the I, Baze/Bowling declaratory nized a uncertainty or controversy gave is the judgment appropriate action vehicle action, rise to the or in any case where of the challenges type Appel raised or declaration is construction Baze, 217 lants. S.W.3d at 209-210. The necessary proper or at the time under action availability declaratory does all appellate circumstances. The not, however, multiple mean that declara case, court in its consideration of the tory may be chal actions filed seriatim shall alleged not be confined to or errors penal lenging implementation of the apparent When, in the record. in its ty grounds. capital selected When opinion, pleadings proof further declaratory ac judgment defendant files necessary final and to a correct decision tion, join he all then must claims available involved, should matters regard to him to the implementation involved, it shall case for remand the judgment judicata of his because res will purpose; or if in opinion its to bar apply full force successive declarato prematurely brought, action is or where ry judgment actions. a ruling appellate in the court is not necessary or at the proper considered Applicable III. Res Judicata circumstances, time under it may all Bowling and Baze’s Administrative direct a prejudice dismissal without Act Procedure Claim Bars the lower court. Declaratory Judg- Their Second of The first sentence this statute allows ment Action trial the court to decline to exercise its to Appellants responded necessary “it is jurisdiction when not or June Order directing supplemen 2008 proper at the time under all the circum- judi- tal a briefing with contention that res stances,” a basis invoking firm sua pre cata and its related doctrines of claim sponte legal an overlooked doctrine such against splitting clusion and rule judicata. The pro- as res sentence second bearing causes of action should have no on not appellate vides courts “shall be because, this case as affirmative defenses alleged confined to errors or in apparent 8.03, and, pursuant thus, to those matters were appellate CR gives the record” the Department waived when failed to apply courts similar discretion to control- pleading. raise them in the first responsive ling regardless law whether it has been general rule, Certainly, by as a failure to as- raised or litigants addressed from parties rule that forbids ac cluded “the declaratory judgment a court in trial asserting by sporadic or rights defenses County Fiscal v. Gallatin tion. Rea asserting them piecemeal precludes from Court, (Ky.1967). These 422 S.W.2d to, necessarily incident and again anything only in applicable de provisions specific with, subject-matter connected actions should claratory judgment proper- might which have litigation former net, safety relieving judicial viewed as a ... Id. ly interposed been therein.” carefully to need consider litigants they responsive pleadings, but indis their judi- to the res an effort avoid appellate trial both and putably allow bar, note recent formula Appellants cata a those issues deemed neces to reach courts of the rule wherein this Court stated tion declaratory resolution of a sary proper in plaintiff that when a defendant a “sue[s] event, if other Accordingly, judgment action. to transaction or regard single a relevant, applied judicata may arising res must raise all claims plaintiff] wise [that Watts, despite a declaratory judgment a action from that transaction event.” Focusing affmmatively supra, the defense S.W.2d failure raise “transaction”, main term Appellants there Finally, is responsive pleading. a Baze/Bowling I about the tain that was raising a court nothing unreasonable about injec implementation of the lethal actual potentially dispositive issues when such constitutionality protocol and its while tion here, given have been full parties, litigation involves different “transac issues, to address those opportunity tion”, adoption manner namely the and oral through arguments. briefs protocol by Department. Ap Substantively, judicata applies res purely is artificial. pellants’ distinction was, of a claim that to bar consideration here, at issue for each of The transaction been, brought prior litigation have could Appellants, implementation is “elementary” This parties. between the and all his death sentence claims long-honored rule has been imple him to challenge available to jurisprudence. grounds must be mentation on whatever that, when elementary rule brought in the first action or be forever litigation, parties are re matter judicata. Appellants barred res As their quired bring forward whole Baze, Bowling Baze/Bowling I was case; plea judicata ap ‘the of res their first action and their Administrative points upon plies only which claim, clearly available to Procedures Act required by parties the court was time, them at the should have been includ opinion pronounce judg form judicata in that action. Res bars con ed ment, every point properly but to this, declaratory the second sideration subject litigation, and belonged to the action, Appel filed those two judgment exercising reasonable parties, which the pre Brian has not Appellant lants. Moore have forward diligence, might brought at viously challenging action the im filed an McCorkle, Ky. the time.’ Davis of his death sentence and plementation (1879); v. Rog 746 Williams [14 Bush] cognizable. APA claim is consequently his ers, (1879); Ky. Bush] 77 776 Hard [14 Injection The Protocol Ky. v. 62 S.W. 10 Lethal Young, [110 504] wicke IV. Promulgated an (1901). Be as Ad- Must Regulation ministrative Co., Prestonsburg Ky. 260 Water Combs (1935). for which Drawing general matters an 84 18 The S.W.2d in cases, body the Executive con- administrative court these ancient Combs the The government, Department clearly “empowered of our such as is Branch to promulgate Department, adopt regulations,” administrative must administrative 13A.100, KRS as reflected numerous in KRS 13A.100 regulations are identified statutes where the Department itself or Which Shall Be Pre- entitled “Matters head, through Secretary its of the Jus- Regulations.” Administrative scribed Cabinet, tice Public Safety is specifi- part pertinent this The of the statute to cally adopt directed to reg- administrative provides: case Department ulations. The is authorized Subject applicable to stat- limitations regulations KRS 197.020 to adopt re- utes, any body is administrative garding the official conduct of empowered administra- personnel “government and the of the pris- shall, regulations tive administrative deportment oners in their and conduct.” ap- regulation prescribe, consistent with Secretary given The is authority broad plicable statutes: KRS to promulgate 196.035 administrative (1) of general applica- Each statement regulations he “necessary deems or suit- memorandum, bility, policy, procedure, proper able for the administration of the implements; or other form of action that any of the cabinet functions or division in interprets; prescribes policy; law or de- fact, cabinet.” the current volumes procedure, scribes the or organization, of the Register Administrative practice any administra- requirements approximately contain pages regula- tive or body; private rights or affects promulgated by tions ad- procedures public; available dressing frequently such matters as how jail inmates’ sheets pillowcases shall (1). 13A.100 Because the KRS semi-colons cleaned, 3:080, 501 KAR and the level confusion, helpful may cause some a more lighting specific jail, of a areas legislative of the intent reflection 3:050, 6:020, KAR Section 6. In KAR regulation”. definition “administrative Section various Corrections Policies and 13A.010(2) provides part: relevant by reference, are incorporated Procedures (2) regulation” “Administrative means including Policy Corrections Proce- general applicability each statement of 9.5) (CPP per- dure 9.5 above discussed body promulgated by an administrative taining policies “Execution” as well pre- implements, interprets, or regarding Adequacy of In- the “Nutritional policy, scribes law or or describes Diet”; “Hair, mate and ID Grooming Card organization, re- procedure, practice Packages.” Standards” “Inmate quirements body. administrative preamble particular regulation existing The term includes an adminis- regulation notes that administrative trative a new regulation, administrative with the stan- “comply accreditation regulation, emergency administrative dards of the American Correctional Associ- regulation, an regulation administrative ation.” statute, in contemplation of a Despite portions the fact that repeal amendment or of an ad- existing Department’s policy regarding execution in- regulation, ministrative but does not regulation, have promulgated been as a clude: Department maintains and circuit (a) concerning in- only Statements court concluded management

ternal of an internal man- “matters of body affecting private rights agement affecting rights” and not ... not private 13A.010(2)(a). As public; available the as referenced KRS certainly 9.5, clearly adopted regulation, as a the which was as

for CPP Depart- right the no its disclosure regulation, prevent claimed an administrative establishing management.” the grounds it as of “internal characterizes ment process components of the execution public Maryland’s recently court ad- highest by attendance the including procedures for whether that state’s administra- dressed activities. and coordination of media public Maryland’s le- procedure required tive act position does not with- Department’s The protocol adopted as a thal scrutiny. careful stand State, regulation. Evans v. Md. First, injec- the lethal apparent it is that (2006). Maryland De- 914 A.2d solely purpose is for the protocol tion (DOC) contended partment Corrections provided the penalty implementing general protocol applica- the did not have Assembly KRS by the General tion, only concerned the DOC’s internal it within the brings This alone 431.220. the management rights not affect and did (1) supports its of KRS 13A.100 ambit rejected all three public. The court Moreover, a regulation.2 as promulgation beginning argument contentions with rights” of those individuals “private Operations Manual that the Execution by executed are being Commonwealth (EOM) applicable not generally poli- was manner which invariably affected cy: administered, again the lethal (T)here legitimate can no doubt promulgation. KRS supporting portions gov- that the of the EOM that 13A.010(2)(a). 13A.100(1); Finally, procedure ern the of and method 9.5 belies Department’s own CPP administering injection have protocol that the suggestion execution effect, application and future general management internal matter of adopted carry a law were to detail out an promulgated not be adminis- should administers, govern that DOC regulation. 9.5 addresses trative CPP have procedure They general of DOC. the inmate shall be housed where effect application and future because execution; presence prior hours they comprehensively govern the man- attorney Department’s from the both every in which death sentence is ner legal office and a information officer implemented. Unquestionably, they legal the warden and media to assist with and, indeed, adopted, were is their responsibili- respectively; matters and the function, to purpose carry sole out during the warden the “death watch ties of §§ the mandates 3-905 and 3-906 of CS necessity including and execution” procedure and add that details to oversee designating deputy warden the statute. They are unaddressed until operation the institution clearly § the ambit of SG 10- within con- responsibilities execution warden’s provision 101(g)(1) Maryland code [the Contrary Department’s posi- clude. defining regulation.] an administrative tion, specific extend well- these matters of the exe- A.2d at 78. As for the internal man- beyond public components and, Maryland agement argument, this court process by adopting policy cution 100(1) provides policy....” ... The dissent Specifically, KRS law or does 13A. “shall, statute, body acknowledge bypassing legis- an authorized applica- regulation prescribe, consistent regula- lature's directive on administrative (1) general ble statutes: Each statement solely “private rights tions to focus on the policy, procedure, applicability, dum, memoran- 13A.0I0(2)(a). procedures” language KRS implements form or other of action began matters “that by noting protocol noted that such are those did not fit the agency of concern to the and its definition of a “rule”. purely Massey at 79 citing Dept. staff.” Id. First, injection the lethal protocol is Services, Safety Public and Correctional not rule as defined the UAPA. (2005). 886 A.2d 389 Md. 4-5-102(10). § Tenn.Code Ann. The particular The test bears atten operative protocol instead fits squarely within two tion: exceptions to the meaning of “rule”: real of whether a Di- concerning only

The test DOC statements the internal (or statement) policy rective other is management government of state and requirements the APA be- exempt affecting private rights from privileges or only the internal man- procedures cause concerns available public, to the Tenn. 4-5-102(10)(A), agement agency § of the and does not Ann. Code and state- whether, public rights given affect concerning ments inmates of a correc- Directive, impact nature facility, tional or detention Tenn.Code 4-5-102(10)(G). Legislature § intended that the Ann. agency adopt, change, abrogate free to Second, 181 S.W.3d at 311-12. the Court will, any public Directive at without in- legislature concluded that the granted had put legislative review. department corrections broad discre- test, Applying tionary notice, 914 A.2d at 79. powers that the public Maryland Evans concluded that the hearing requirements Court and other “ legislature never intended to leave to the ‘simply UAPA were re- realistic DOC, any oversight, quirements without “unbridled implementing procedures authority to determine and then at that change complexi- concern the intricacies and ” will, management, as a matter of internal prison ties of the environment.’ Id. at (the (citation omitted). penalty) how statute to be Finally, and some- implemented.” closing, Id. at 80. the what curiously, though even the Tennes- Maryland Appeals Court of concluded that statute regarding capital punishment see regarding drugs employed, generally, decisions the lethal method of their specifically, manner administration and authorized the corrections de- partment similar issues affect “not only promulgate “necessary inmates rules it, personnel, regulations” and the correctional but implement the Ten- witnesses allowed to observe the execution that Supreme nessee Court noted the stat- UAPA, public generally, through per- and the its ute not expressly did reference the ception process.” Ultimately, of the Id. thereby supporting the conclusion that the challenged inapplicable. the Evans Court declared the was UAPA ineffective protocol execution and unusable Although the issue before this Court is adopted Mary- until in accordance with ultimately Kentucky one of construction of land’s administrative act. statutes, Evans is instructive as to the Supreme of Tennessee management” Court limitations “internal contrary court, regarding exception. Maryland’s highest reached a conclusion Like depart whether state’s corrections this Court finds that adopt injection pro protocol “purely ment had to its lethal is not an issue of concern” conformity tocol as a rule in Tennes and its staff. Nor is concluding see’s Uniform Administrative Procedures there basis for (UAPA). Assembly Act In Abdur’Rahman v. Bred General intended esen, (Tenn.2005) modify 181 S.W.3d 292 to be able contradict KRS appears

will, oversight, the manner because any without which, above, provides most serious as noted 13A.100 which the Commonwealth’s out. As for the Ten is meted punishment contrary conclu Court’s Supreme nessee stat- [s]ubject applicable to limitations sion, Proce Kentucky’s Administrative utes, any body which is administrative exception not have an Act does dures administra- empowered relied, exception ie. the

which that Court shall, by administrative regulations tive concerning inmates of a for “statements ap- regulation prescribe, consistent facility.” More correctional detention plicable statutes: over, the Tennessee Court to the extent (1) applica- general Each statement of management” “internal ex relied on the memorandum, bility, policy, procedure, have, law does ception, implements; or other form of action that with summarily cited it rather prescribes policy; law or de- interprets; how any attempt explain implemen out procedure, or organization, scribes the penalty qualifies as tation of the death requirements administra- practice department internal corrections matter of body; private rights or tive or affects short, nothing In in Ab~ management. public. available to the procedures persuades us that the Ken dur’Rahman broad man- glance, At first section’s Procedures Act dic tucky Administrative pre- agencies date that authorized shall conclusion.3 tates a similar for, regulations among things, other scribe Finally, maintains procedures affecting private policies and adopting regula from prohibited that it is rights, seems at odds with KRS 13A.120’s implement stat tions to imple- that statutes not be requirement (l)(a) an KRS 13A.120 states ute because by regulation regulation mented unless the ad body “may promulgate administrative specifically authorized the statute. implement a regulations ministrative conflict, however, by ap- The is resolvable only when the act of the General statute plication statutory of traditional construc- creating amending the statute Assembly principles. tion promulgation specifically authorizes construing these statutes regula regulations” or such course, goal, give our is to effect to by federal law. This required tions are Assembly, and we admittedly intent of the General perplexing somewhat statute Little, 2007). following In Harbison v. 571 F.3d 531 3. Less than sixteen months Ab dur'Rahman, (6th Cir.2009) Appeals Tennessee Phil Brede- Governor the U.S. Court of sen, “highlighted finding defi a review had the Sixth Circuit noted that Commissioner procedures in the written intended to ciencies appoinled a committee which formulated legal will continue insure that all executions met numer protocol. revised committee appropriately” “ad to be carried out and that public hearing ous times and held a before penalty in a consti ministration of Bredesen, issuing findings, Workman v. its appropriate respon tutional and manner is (6th Cir.2007), which are set F.3d sibility highest importance,” revoked Appendix opinion. forth to the Workman and electro all of Tennessee’s Thus, following F.3d at 913-921. Ab See 486 protocols. He directed the Commis cution dur'Rahman, Tennessee's Governor accom comprehen of Corrections to initiate a sioner through plished executive order the review protocols practices sive review of the best hearing components which would new in other states and then to establish Supreme have occurred had the Tennessee administering protocols Court ruled in die manner that this Court is Tennessee, State of Execu death sentences. today. ruling (Feb. tive Order the Governor No. 43 intent, if at all from possible, clearly derive suits were not the General Assem- plain meaning language bly’s argue intent and so conclusively Assembly presume, chose. We General against the urged by construction the De- statutes, such one a case as this of related partment. Assembly that General intended for Although KRS 13A.120 does not together

the statutes to be construed and require every that statute bearing upon meaning. pre- for both to have We also agency’s an authority duties and include Assembly that the General did sume not does, noted, the regulatory grant, it as an intend absurd result or an unconstitu- require every that regulation justified be Drugs, one. King tional Inc. v. Common- an by express of grant regulatory authori Cabinet, Kentucky, wealth Revenue 250 of ty clearly embracing regulation. that 643, (Ky.2008); S.W.3d 645 Mullins v. requirement That here, is met as the De Commonwealth, (Ky.1997). 956 S.W.2d 210 partment’s regulatory authority over exe may be These statutes harmonized not- cutions is clearly included within the au ing that provides KRS 13A.120 when thority 197.020(1), granted by KRS which regulation permitted is while KRS 13A.100 provides pertinent part that regulation required.4 for when provides is Department [t]he of Corrections shall: First, regula KRS 13A.120 limits (a) Promulgate regula- tory authority by requiring every assertion tions for government discipline by, such to authority justified of be and to penitentiary, for the government of, an implementation express be statute and official conduct of all officials con- ly granting authority. such does It nected with the penitentiary, and for the maintains, require, as the that government prisoners their de- every statute be agency might called portment and conduct. upon interpret implement include execution, course, An is one of the most regulatory grant. That would be an serious official peniten- acts carried out impossible task for the Assembly General tiary officials and the most serious act of part meaningless and would render governance prisoner. many grant over This establishing agencies statutes regulatory authority general satisfies KRS granting regulatory authority, 13A.120, regulation permitted. and thus Assembly’s ap which is the General usual is 197.020(1) Indeed, only permits to that task. KRS proach Department’s The promulgation of regulations governing construction would also render host of executions, it regulations promulgated pursu Regulation mandates it. is general grants 13A.100, ant to such regulatory also KRS which mandated re- authority if, here, completely invalid. These quires regulation regulation re- as 100(1) (Ky.1956) (noting 4. While we that 13A. conclude KRS 307 S.W.2d that 120(1) reconcilable, fully and KRS 13A. every while effort must be made harmonize noting they thought is worth conflict, were general subject, statutes on the "Li]f same statute, recently the more enacted reconciled, conflict cannot the later statute 100(1), which Assembly KRS 13A. the General Thus, controls”). 13A.100(l)'s require KRS (1990 516), adopted Ky. Ch. Acts imple ment administrative rules "that 13A.120, would control KRS which over was rights ... "affect[ing] private ment law” or (1986 499). adopted Ky. in 1986 Ch. Acts public” pro available to the Trammell, Troxell v. 730 S.W.2d mulgated regulations regu as would mandate 1987) ("Our | (Ky. statutory rule ] of construc 120(1) lation here if KRS 13A. were even given tion that ... a later [is] statute effect thought provide otherwise. statute.”) Hoblitzell, over earlier Brown general appli- CONCLUSION statements prescribe will (such laws cability implement pursuant trial court was authorized 431.220) rights. The private affect original to vacate its order 59.05 CR words, line, is that in other bottom That 2006 order. enter its December adopt- prohibited from is not affirmed, different albeit on order regulations to the death ing implement Appellants grounds, as to dismissal be- through injection simply penalty ju- claims because res Bowling and Baze’s express 431.220 contains no cause KRS of a second precludes dicata consideration regulations. challenging adoption declaratory of action judgment reference to sen- respective their implementation of that our Admin Having concluded However, the trial of execution. tences that the Procedures Act mandates istrative in that concluding court erred as protocol promulgated be injection lethal pro- to injection protocol subject was not it affects regulation private to extent regulation as an mulgation administrative apparent nonetheless that rights, it is and, 13A there- pursuant Chapter to KRS pertinent be minor issues may there well fore, re- 2006 is December order are matters of truly to an execution which The De- as to Moore. Appellant versed of management. internal The identities by required of partment Corrections team, storage location of the execution regulation law to security-related and other issues drugs portions as all lethal to purely as issues properly can be classified in- limited protocol except those issues The management. drug proto of internal purely of con- management ternal that Rees, 553 at - - col outlined in Baze v. U.S. Accord- Department personnel. cern to 1527-1529, -, S.Ct. ingly, December Order 429-430, however, indisputably L.Ed.2d at part in Franklin is affirmed Circuit Court rights property must private affects in part. and reversed Chapter to 13A adopted pursuant KRS fur Department proceeds MINTON, C.J.;

before NOBLE and SCHRODER, JJ., ther executions. concur.

CUNNINGHAM, J., concurring part in Finally, separate we understand the dissenting part by opinion while in J, J, SCOTT, SCOTT, in joins. circuit court’s conclusion the bench part in concurring part dissenting I was an /Bowling trial Baze effective opinion in which separate hearing protocol, on the current public VENTERS, JJ, CUNNINGHAM and there is for this Court deem legal no basis join. what General ing a substitute for in our Administra

Assembly required has CUNNINGHAM, J, concurring part Act. must tive When matter Procedures dissenting part: prescribed by regulation res majority with the I concur 13A.100, Act KRS must be pursuant to to and Baze. judicata Bowling issue as complied respects. Depart with in all The to, However, join, I and add the dissent pursuant obligated proceed ment respect, all due I find Scott. With Justice aspects all Chapter 13A as to justification extending no logical protocol except matters Appellants, and Baze. holding Bowling management such as those mere internal fact, contradictory. it seems noted above.

Says majority concerning the claims was made on issue. It very was de- nied, judicata however, “Res Bowling and Baze: bars Chapman after himself second declarato- of this the consideration asked that it be refused. action, judgment filed those two

ry promulgation The process will invite fur- Appellants.” upon ther attacks the convictions of these illogieally But to me—this seems —-it instance, men. For KRS 431.220 allows that. proceeds just to do Court Baze and Bowling up twenty days be- goes say: “Finally opinion their fore scheduled executions to choose the circuit we understand courts while injection. electrocution of lethal instead bench trial conclusion twenty-first they On the can day, only Baze/Bowling was an effective hear- choice, proceed make that but then to chal- ing on there is protocol, the current no lenge promulgated regulation the lack of legal deeming basis for the it a protocol argu- the electrocution issue —an Assembly General substitute what the ably not majority opin- addressed required has our Administrative Proce- ion. The answer would seem obvious. Act.” dures But such reality preclude does not further filings, briefing, by further further review It how the puzzles me as to barred Court, this delay. further Bowling of Baze can be sua claims piggy-backed the viable action sponte onto There is no end to the creative mind of Moore. of the condemned. out, points As Justice Scott the ease of It majority opinion seems to me that the Bowling out for and Baze cries closure. upon technicality. turns a sterile It has elapsed two since Almost decades have the nothing to do with a fan- trial of Appel- Bowling years crime and since eighteen Nothing lants. which affects the severity the crimes of Baze. The latter case has punishment the the or humaneness of Court and back. Supreme been U.S. employed. heavy the method These issues reason, For some 2007—over October have all by been decided—one of them the years ago effectively stayed two this —we highest court of our land. Our decision Supreme civil action while the U.S. Court today here gives guilty the more time to totally the lethal in- considered unrelated gives live. It the families of innocent the jection issue. victims more time to suffer. By requiring promulgation sub- inviting

ject protocol, delay— we are more SCOTT, J., joins. maybe delay. implant- much more We are SCOTT, Justice, concurring in part and ing into moving part already another dissenting part: lumbering apparatus penalty our death appellate process. I all other Although grounds, concur on persons have respectfully my

We executed 165 I must dissent from es- regulation requiring without the now colleagues’ opinion state deemed teemed required by majority. These to promulgate include Corrections Chapman injection protocol the latest execution of Marco as an adminis- lawyers regulation proceeding this action was filed. His after trative before stayed until a I dissent because the ruling asked his case be further executions.5 preme recently approved Both United the lethal in- this Court and the States Su- right (“Sentencing not a a defen- private (Ky.2007) or penalty death to volun- dant death because defendant procedure available teers to be executed is and is an improper Department of used discretion.”). person, abuse of No statements of internal Corrections offense, one of a capital even convicted has pursuant management “right” penalty. a to the death As the 13A.010(2)(a).6 Therefore, this is right penalty private is not requires promulgation matter which procedure public pursuant available to regulations under Ken- 13A.010(2)(a), plain reading to a of KRS tucky’s Administrative Procedures Act of Corrections should not (APA).7 required promulgate administrative be thirty-six there are inmates Currently, concerning injection. regulations Thus, it Kentucky.8 on death row addition, by regula- these requiring say erroneous that lethal is a tions, majority adds a new stratum to right procedure available to the private must already steep terrain which be Kentucky’s “public” public, when consists traversed before the Commonwealth can 4.2 million none people, of more than carry out If an inmate’s death sentence. unilaterally choose for whom could Kentucky’s civil suit APA can under to end their Commonwealth delay time used further executions Though life means execution. again, we time where will find the end of thirty-six may on death row individuals ap- A new such measures? multitude of of Ken- executed Commonwealth from peals process this administrative will they possess because tucky, is not “delay now become the new tool” in death Rather, if a right. even defendant refused penalty protests. trial present mitigating evidence at of in his or requested Bredesen, a sentence her v. Abdur’Rahman trial plea agreement, 292, (Tenn.2005), court would not it was S.W.3d 311-12 ar- obligated impose such sentence. gued procedures which made up Commonwealth, Chapman injection protocol v. 265 S.W.3d the lethal constituted issue, existing jection protocol holding regulation, that it did administrative a new regulation, prohibitions against emergency not violate the cruel and administrative an regulation, punishment unusual set forth in Section 17 an administrative of statute, regulation contemplation Eighth Kentucky of Constitution and the repeal existing amendment or of an admin- the United Amendment of States Constitution. regulation, Rees, istrative but does not include: (Ky.2006); v. 217 S.W.3d 207 Baze Baze (a) only Rees, concerning Statements 1520, inter- 553 U.S. 128 S.Ct. management body nal an administrative (2008). L.Ed.2d 420 Since its review the private proce- affecting rights and not or Court, Supreme injec- Unites the lethal States dures ... available to the protocol carry tion was used to out the execu- added). (emphasis inmate, Chapman, Marco tion one No- vember 2008. KRS 7. 13A.100 describes the matters for regulations pro- which administrative must be reads, pertinent part: 6.KRS 13A.010 however, mulgated. is prefaced, This statute (2) regulation” “Administrative means with a statement narrows its reach: general pro- applicability "[s]ubjeci each applicable statement to limitations in stat- 13A.0I0(2) mulgated by body ...” provides Administrative utes. KRS such limi- interprets, implements, prescribes or law tations. or policy, organization, proce- describes the or dure, inmates, requirements practice thirty-six or Of the ad- death-row there thirty-five body. The ministrative term includes an males and one female. adopted rules which had been violation specifically Corrections was authorized to of the state’s Uniform Administrative Pro- regulations necessary to (UAPA). The implement cedure Act Tennessee Su- the statute. The court held ' Court, however, “a preme held: ‘rule’ does that the authority to make regulations re- concerning only not include garding injection ‘[statements lethal is not tantamount management govern- the internal of state to a requirement to do so. Kentucky’s affecting private rights, statute, ment and not priv- injection 431.220,10 lethal KRS pro- ileges procedures available to the pub- vides no such direction to the Department ” lic.’ (citing Id. at 311 Ann. 4- Tenn.Code Corrections concerning the promul- 102(10)(A)). Tennessee, Just as in gation of regulations. 5— injection lethal protocol is mat- Furthermore, it is not certain that lethal ter of the internal management of the De- injection will be the means of execution in partment of Corrections which does not the event that Appellants’ death sentences rights affect private avail- are carried out. While KRS 431.220 con- public pursuant able to the tains no directive requiring Depart- 13A.010(2)(a). Rather, injection ment of Corrections to promulgate regula- protocol neatly exception fits within the tions concerning injection, lethal it does provided by the statute. Id.9 contain another requirement: that any in- Moreover, Supreme the Tennessee mate sentenced prior to death to March held that the Department of Correc- 1998 is given to be the choice between required tions was not to promulgate their lethal and electrocution. KRS 431.220(l)(b). injection protocol proceeding before only It after an inmate executions, in spite statutory au- refuses to make this choice at least twenty (20) thorization. Under the days Tennessee lethal before their execution is sched- statute, Tennessee Code Annotat- uled to place take that lethal injection is 40-23-114(c), ed section selected default. Id. All three Appel- majority relevancy 9. The attacks the of Ab- method of para- execution described in (16) dur’Rahman for that (a) reasons sixteen graph of this subsection or the method rendition, governor after its months the of electrocution, of execution known as which political made Tennessee decision to re- passing through prison- shall consist of the vamp procedures employed by the execution body electricity er’s a current of of suffi- However, stated, previously the state. as the intensity quickly cient to cause death as as injec- here decision turns on whether lethal possible. application of the current right procedure tion affects a available to prisoner shall continue until the is dead. If public. the That is the issue we were asked to prisoner refuses to make a choice at address and we have addressed. Polit- (20) twenty days least before the scheduled rightfully province ical decisions are execution, by the method shall be lethal legislative gov- the executive and branches of injection. judicial. ernment —not the (2) penalty by All executions of the death injection electrocution or lethal shall take 10. KRS 431.220 reads: place penal within the confines of the state (1)(a) (b) Except provided paragraph designated by Department institution subsection, every of this death sentence Corrections, and in an will enclosure that by shall be executed continuous intravenous exclude view thereof. injection of a substance or combination of (3) physician No shall be involved in the substances sufficient to cause death. The except certify conduct of an execution to injection pris- lethal shall continue until the provided cause of death oner dead. con- (b) by per- demned Prisoners who receive a death sentence is declared dead another 31, 1998, prior to March shall choose the son. promulgated ment of Corrections such in this case were sentenced death fonts therefore, 31, regulations. it is not before March 1998— any them will certain one of choose even of Ken- Since the Commonwealth as method of execution. injection his carry tucky has used electrocution to out opt of lethal if they Since can out before nor after death sentences. Neither choose,

they we should consider so adoption Kentucky’s APA has the Department that the of Cor- their claims promulgated Corrections injec- must rections regulations regarding administrative elec- regula- as an protocol tion (as the now majority requiring trocution tion. injection). adopted concerning lethal be electrocution is still used Ken- While

And, postpone Appel- even if we were under which it tucky, circumstances Depart- until the lant Moore’s execution limited: may employed very be promulgates ment of Corrections these prior inmate sentenced to death March be so the same should not regulations, 31,1998 would have to choose electrocution Bowling. Baze As ma- Appellants or her as the means which his held, their are barred jority claims res out. It sentence is be carried defies or more the bar judicata, particularly, that a execution reason method of em- against splitting causes action. Both Kentucky ployed since 1911 Supreme court and States United used since 1997 would now—when can have held that the lethal used in such limited circumstances —be protocol used the Commonwealth of subject regula- of newly-promulgated Eighth does their not violate tions. Baze, rights. generally Amendment See 207; Baze, 217 S.W.3d 553 U.S. recognizing While seriousness Thus, inmate, L.Ed.2d 420. since execution of an S.Ct. Corrections, barred, judgment point,

their action is their some must al- stayed. carry lowed to the sentences through should not be out already ap- have been Moreover, taking majority’s position proved by both our highest Courts conclusion, though ultimate to its even res our State and Nation. Baze, Bowling, judicata would bar Many years gone by have since these appeal, from bringing Moore another worthy crimes have deemed of death been prior inmate other sentenced to death (30) years over thirty committed: 31, 1998 March could choose electrocution (17) Moore, Appellant case of seventeen the manner which his death sentence as Baze, in the years Appellant case of out, pursue carried then is to be (19) years in of Appel- nineteen the case unnecessary appeals lengthy and Bowling. cry lant cases out These would force the of Corrections victims cry closure. families of the administrative, promulgate regulations for closure. out The condemned enti- regarding employed for hands, own tled to closure—not at their occur, If electrocution. this were to under appropriate but at the of an judg- hands inmate majority’s reasoning, any sen- Respect law erodes ment. for our when prior tenced to March timely punishment given its fair (including Appellants the three case upon justice. place scales bar) opt could for electrocution as their execution, that I means of their sentences It is for these reasons dissent Depart- opinion requiring majority’s could be carried out until from Department of Corrections injection protocol con- regulation before an administrative further executions.

ducting VENTERS, JJ.,

CUNNINGHAM

join opinion. SANDERS, Appellant,

William Kentucky,

COMMONWEALTH

Appellee.

No. 2008-SC-000118-MR. Kentucky.

Supreme Court of

Jan.

Case Details

Case Name: Bowling v. Kentucky Department of Corrections

Court Name: Kentucky Supreme Court

Date Published: Jan 4, 2010

Citation: 301 S.W.3d 478

Docket Number: 2007-SC-000021-MR

Court Abbreviation: Ky.